Legal Updates

Update on the Public Contracts Regulations 2015

On 26th February 2015 the Public Contracts Regulations 2015 (SI 2015/102) (“the Regulations”) were published. They implemented the EU Public Sector Procurement Directive 2014/24/EU which was brought in with the intention of simplifying the existing regime, providing additional flexibility for contracting authorities, and codifying recent European case law.

A substantial proportion of the provisions in the Regulations came into force on 26th February 2015 and 1 April 2015. However, there are some key exceptions which are set out in Regulation 1.

We have set out below, as an aide memoir, the key parts of the Regulations yet to come into force. A series of articles will follow on some of the key changes brought in by the Regulations.

A word of warning!

The Regulations should only apply from the date they are given statutory effect – so generally to procurement processes commenced on or after 26 February 2015. However in a recent case of Edenred (Group UK) Limited – v – Her Majesty’s Treasury and others (2015) the Supreme Court had regard to the Regulations as an aide to interpretation of whether changes to a contract were permitted under the Public Contracts Regulations 2006 (“the Old Regulations”). So even though the procurement commenced under the Old Regulations and the case was instigated under the Old Regulations, the Court considered the new Regulations when determining the issue.

EXCEPTIONS

The key parts of the Regulations yet to come into force are as follows:

The Regulations will not apply to any contract award procedure that relates to the procurement of health care services for the purposes of the NHS within the meaning of the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 until 18thApril 2016; and

Regulation 22 (1) to (7) sets out rules in relation to use of electronic communication during a procurement process. For example, Regulation 22 (1) states that the tools and devices used for electronic communications must be non discriminatory, generally available and interoperable with the information and communication technology products in general use. The applicability of Regulations 22 (1) to (7) varies depending upon the circumstances, so:

a) Regulation 22 (1) to (7) applies with effect from 26 February 2015:

where a contracting authority uses electronic communication in its procurement process (such as under Regulation 27(6) for the Open procedure),

where the contracting authority uses a dynamic purchasing system it must use electronic communications (and so the requirements apply), and

wherever a contracting authority chooses to use electronic communications prior to them coming into full effect;

b) With effect from 18th April 2017 all procurement procedures run by central purchasing bodies must be conducted electronically and so regulation 22 (1) – (7) will be effective in those circumstances from that date; and

c) For all other purposes (including the requirement on other contracting authorities to use electronic communications in all procurement processes) the Regulation is effective from 18 October 2018.

The requirement that the European Single Procurement Document shall be provided exclusively in electronic form (Regulation 59(7)) comes into force on 18thApril 2017.

Regulation 61, which provides that recourse shall be had to e-Certis, the European Commission’s online repository for certificates and other forms of documentary evidence, comes into force on 18th October 2018.

Keep an eye out for future updates on specific parts of the Regulations.

Kirstin Parker and Stanley Kamalu

Clarkslegal, specialist Public Procurement lawyers in London, Reading and throughout the Thames Valley.

For further information about this or any other Public Procurement matter please contact Clarkslegal's public procurement team by email at contact@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.